Helm v. Kansas

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH September 7, 2011

Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT

CHRISTIE HELM,

Plaintiff - Appellant,

v. No. 10-3092
STATE OF KANSAS,

Defendant - Appellee.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:08-CV-02459-JAR)

Lynne Jaben Bratcher, Bratcher Gockel & Kingston, L.C., Kansas City, Missouri, for
Plaintiff-Appellant.

Teresa L. Watson (David R. Cooper and Terelle A. Mock with her on the brief), Fisher,
Patterson, Sayler & Smith, L.L.P., Topeka, Kansas, for Defendant-Appellee.

Before KELLY, EBEL, and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Christie Helm appeals from the district court’s order granting

summary judgment in favor of the State of Kansas on her claim for sexual harassment
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Helm

sued the State after she was allegedly sexually harassed over a period of almost ten years

by Judge Frederick Stewart, a state district judge for whom Helm served as an

administrative assistant. The district court determined that the State was entitled to

summary judgment because Helm fell within the “personal staff” exemption to Title

VII’s definition of “employee” and thus did not qualify for the protections afforded by

the statute. See id. § 2000e(f). Alternatively, the court ruled that summary judgment for

the State was proper on the basis of the Faragher/Ellerth affirmative defense to employer

liability for a supervisor’s sexual harassment of a subordinate. See Faragher v. City of

Boca Raton, 524 U.S. 775, 807–08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 764–65 (1998). Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the

Faragher/Ellerth defense precludes vicarious liability against the State of Kansas for

Judge Stewart’s alleged actions. Accordingly, we AFFIRM the judgment of the district

court without reaching the question whether the “personal staff” exemption removes

Helm from the purview of Title VII. We also DENY both parties’ motions to seal certain

volumes of their respective appendices.

I. BACKGROUND

A. Judge Stewart’s Alleged Sexual Harassment of Helm1

1
For purposes of summary judgment, we take as true Helm’s account of Judge
Stewart’s conduct.
Continued . . .
2
 In September 1998, Christie Helm was hired to fill an administrative-assistant

position shared between Judge Frederick Stewart and Judge Robert Bednar in the First

Judicial District of Kansas (the “First Judicial District”).2 At that time, Judge Stewart had

served as a district judge for more than twenty years, while Judge Bednar was beginning

his first year on the bench. Judge Stewart began sexually harassing Helm shortly after

she was hired. For several years, the harassment primarily involved touching Helm’s rear

end, thighs, and legs. Additionally, in 1999, Judge Stewart forced a kiss on Helm in front

of the courthouse.

Helm took a medical leave of absence during the spring and early summer of

2006. After Helm returned to work, Judge Stewart started touching her inappropriately

again. During the spring of 2007, the harassment began to escalate. Throughout March

and April, Judge Stewart would regularly close the door of his office and kiss Helm. In

addition, he once put his hands up Helm’s skirt. In late May or early June 2007, Judge

Stewart put his hands up Helm’s skirt and penetrated her vagina with his finger. He also

told her that he wanted to have sex with her on the couch in his chambers and make her

have an orgasm. In June 2007, Judge Stewart unbuttoned Helm’s blouse on two different

occasions and fondled her breasts.
______________________________________
Cont.

2
Helm also assisted a part-time judge, Patrick Reardon, after he was appointed in
2002.

3
B. The First Judicial District’s Sexual Harassment Policy

The First Judicial District has adopted the sexual harassment and discrimination

policy formally promulgated by the Kansas Judicial Branch in the Kansas Court

Personnel Rules (the “Rules”). The sexual harassment policy prohibits sexual

harassment, defines the proscribed conduct, details how and to whom employees should

make a sexual harassment complaint, explains the complaint investigation process, and

includes an anti-retaliation provision. Under the policy, the court administrator is

responsible for receiving complaints of sexual harassment (either from the victimized

employee or from the supervisor to whom the employee complained), notifying the

Office of Judicial Administration (the “OJA”), and coordinating a response with the OJA.

When the allegations involve a judge, the OJA works with the Kansas Commission on

Judicial Qualifications (the “KCJQ”) to conduct an investigation.

The Kansas Judicial Branch Employee Handbook (the “Handbook”) contains a

section regarding the First Judicial District’s sexual harassment policy. That section

provides, in part, as follows:

An employee who believes he or she has been subjected to unlawful
harassment should bring the concern to the immediate supervisor,
appointing authority, or the Director of Personnel. Employees will not be
retaliated against for making a sexual harassment complaint. All
complaints are taken seriously and a confidential investigation will be
conducted promptly.

(Aplt. App., vol. II at 248.) All court employees receive a copy of the Handbook and are

required to submit an acknowledgment form indicating that they have read and

4
understand the policies contained therein. Helm received a copy of the Handbook, read

through it, and signed the acknowledgment form.3 She kept a copy of the Handbook in

her desk drawer at work.

The First Judicial District provides sexual harassment training to management-

level employees but does not provide such training to non-management employees like

Helm. It disseminates the sexual harassment policy to non-management employees only

via the Handbook and the Rules.

C. Helm’s Complaints About Sexual Harassment and the First Judicial
District’s Response

Between 2003 and 2007, Helm complained to a coworker, Karen Connor, about

Judge Stewart on approximately ten different occasions. She never mentioned specifics,

stating only that Judge Stewart made her uncomfortable. In late June or early July 2007,

Helm approached the chief judge of the First Judicial District, David King, and told him

that Judge Stewart had done something inappropriate and made her feel uncomfortable.

She did not disclose any details. Chief Judge King told Helm that no one should work

under those circumstances and advised her of the procedure for making a complaint. He

also told her that if she wished to make a complaint, the First Judicial District “would

stand beside and support her fully and that there would be no consequence to her as a

result of making the complaint.” (Aplt. App., vol. VI at 1150.) Helm said that she

3
In her summary-judgment affidavit, Helm nevertheless avers that she did not
know about the First Judicial District’s sexual harassment policy.

5
wanted to think about whether to make a complaint, and Chief Judge King responded,

“Well, don’t take too long, because if you don’t do anything, I’m going to have to do

something since you’ve conveyed this to me.” (Id.) In addition, Chief Judge King

commented that the “matter would take on a life of its own that [Helm] wouldn’t be able

to control” once an investigation began. (Id. At 1157)

Helm came back to Chief Judge King the same day and said that she had resolved

the matter with Judge Stewart and did not wish to pursue it further.4 Chief Judge King

relayed his conversation with Helm to Steven Crossland, the court administrator, but

neither King nor Crossland made a report to the OJA. In his deposition, Chief Judge

King explained that Helm’s decision not to pursue her complaint after he explained the

process to her led him to believe that maybe there was not really a problem. He also

stated, “[I]f I had given credit to her complaint and if I had assumed that she had been the

victim of sexual harassment, it would not have been a matter of her choice of reporting it.

But she didn’t give any details.” (Id.)

In July 2007, Helm requested medical leave so that she could seek treatment for

alcohol and drug abuse. She was given permission to take unpaid leave under the Family

4
Helm claims in the background section of her opening brief that Chief Judge
King’s statement about the matter taking on a life of its own discouraged her from
making a complaint, but she cites no portion of the record to support that assertion. Nor
does she raise that argument in the section of her brief addressing the reasonableness of
the State’s efforts to prevent and correct sexual harassment. Consequently, we give no
weight to that assertion in Helm’s brief.

6
Medical Leave Act after she exhausted her sick leave and vacation. During the month of

July, Helm received inpatient treatment at an alcohol and drug rehabilitation facility.

On August 8, 2007, before Helm was scheduled to return to work, she reported to

Judge Bednar that Judge Stewart had sexually harassed her. This was the first time that

she had made any mention of the issue to Judge Bednar. Helm told Judge Bednar that the

harassment was “basically verbal, but it had gotten to touching or had involved

touching.” (Id. vol. II at 120.) She also informed Judge Bednar about her previous

conversations with Chief Judge King.

Judge Bednar immediately reported Helm’s complaint to Chief Judge King and

Steven Crossland. Judge Bednar also told Judge Stewart about the complaint. According

to Judge Stewart, Judge Bednar opined that Helm was making the claim simply because

she was after money. Crossland notified the OJA of the complaint later that same day.

At that time, Crossland believed that Helm would return to work on August 13, 2007, and

he planned to talk to her and Chief Judge King on that day about changing her duties so

that she would not have to work for Judge Stewart anymore.

Helm did not return to work on August 13. On August 21, 2007, Mike Helm,

Christie Helm’s husband, contacted Crossland about his wife’s job status. The Helms

were concerned because Christie had received smaller paychecks and then no paychecks

during her leave of absence. Later that day, Crossland met with the Helms and explained

that the change in pay was because of Christie Helm’s exhaustion of sick leave, not

because her job was in jeopardy. Crossland also raised the issue of Helm’s sexual
7
harassment complaint against Judge Stewart, stating that sexual harassment would not be

tolerated and that the complaint would be investigated regardless of whether she

submitted a formal written complaint. Crossland testified that he then assured Helm that

they would discuss changing her duties upon her return to work, although Helm testified

that she does not remember that part of the conversation.

At some point after Crossland relayed Helm’s complaint to the OJA—the record

is unclear as to the exact date—the KCJQ initiated an investigation into Helm’s

allegations against Judge Stewart. Helm testified before the KCJQ on September 17,

2007.

D. Helm’s Arrest and Termination

On September 18, 2007, Helm was arrested following an altercation with her

husband. She was charged with aggravated battery, a felony, and domestic battery and

disorderly conduct, both misdemeanors. Helm ultimately entered into a diversion

agreement that included her stipulation to facts that satisfied the elements of the three

charged offenses.

On December 3, 2007, Chief Judge King sent Helm a letter informing her that the

conduct to which she admitted violated three provisions of the Rules. He further

explained that her decision to enter into a diversion on a felony charge disqualified her

from accessing defendants’ criminal histories under the rules established for the Kansas

Criminal Justice Information System. This precluded her from carrying out her duties as

an administrative assistant. Chief Judge King also wrote that Judge Stewart had removed
8
himself from any employment decisions concerning Helm and that Judge Bednar had

delegated the authority to make such decisions to Chief Judge King. Accordingly, Chief

Judge King proposed termination of Helm’s employment and gave Helm the opportunity

to respond.

Helm responded in a letter dated December 7, 2007. She provided a number of

reasons why she should be allowed to continue working for the First Judicial District,

including the fact that Ron Chance, the court administrator who preceded Crossland, had

entered into a diversion on a DUI charge and had not been fired. Helm suggested that her

criminal prosecution and the proposed termination represented retaliation for her

complaining about Judge Stewart’s sexual harassment.

One week later, Chief Judge King wrote Helm back and informed her that she was

terminated effective immediately. He rejected Helm’s attempt to compare her situation

to Chance’s, explaining that Helm was the only employee that he knew of who had

admitted to facts constituting a felony offense against another person. He also addressed

Helm’s retaliation argument:

Your contention that your termination is in retaliation for your assertion of
a claim of sexual harassment is completely without merit. The district
court administration, and not you, submitted your complaint to the [KCJQ]
through the [OJA]. It was you who were reluctant to pursue a complaint
against Judge Stewart, notwithstanding our assurances to you that there
would be no adverse employment consequences for you doing so, and our
assurances that you would be supported through the process by the district
court administration. . . .

....

9
 Simply put, the decision to propose termination of your employment
was based exclusively on your admitted criminal misconduct and nothing
else. Absent such misconduct, termination of your employment would not
have been proposed.

(Aplt. App., vol. III at 397.)5

E. KCJQ Disciplinary Proceedings Against Judge Stewart

On June 3, 2008, the KCJQ filed a Notice of Formal Proceedings against Judge

Stewart. In October 2008, however, Judge Stewart retired from the bench and moved to

Alabama. Consequently, the KCJQ closed the investigation.

F. Procedural History

On January 22, 2008, Helm filed a Charge of Discrimination against the State of

Kansas with the Equal Employment Opportunity Commission (the “EEOC”). She

alleged sexual harassment and retaliatory discharge in violation of Title VII. On June 27,

2008, the EEOC dismissed the charge with the comment, “No jurisdiction, no employer –

employee relationship.” (Aple. Supp. App., vol. II at 1564.)

Helm then filed her claims in federal district court. Early in 2009, the parties filed

cross-motions for summary judgment. Helm sought partial summary judgment on the

issue of whether she qualified as an “employee” under Title VII, while the State sought

summary judgment on both of Helm’s claims. In an order dated March 17, 2010, the

district court denied Helm’s motion for partial summary judgment and granted the State’s

5
In his deposition, Crossland similarly represented that Helm would have been
allowed to continue her employment with a different judge or in a different office if not
for her arrest and diversion.

10
motion for summary judgment. The court first ruled that Helm was not an “employee”

protected by Title VII because she served on the “personal staff” of both Judge Stewart

and Judge Bednar. Furthermore, the court determined that even if Helm did qualify as an

“employee” for Title VII purposes, the State was entitled to summary judgment on

Helm’s sexual harassment claim on the basis of the Faragher/Ellerth affirmative defense.

Helm now appeals the district court’s grant of summary judgment in favor of the

State on her sexual harassment claim.6

II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo, applying the

same standard as the district court. Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d

1255, 1259 (10th Cir. 2010). Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where, as here, a defendant moves

for summary judgment to test an affirmative defense, “[t]he defendant . . . must

demonstrate that no disputed material fact exists regarding the affirmative defense

asserted.” Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997). Once the defendant

makes this initial showing, “the plaintiff must then demonstrate with specificity the

6
Helm does not appeal the district court’s denial of her motion for partial
summary judgment or the district court’s grant of summary judgment in favor of the State
on her retaliation claim. Accordingly, the only issue before us is whether the district
court properly granted summary judgment to the State on Helm’s claim for sexual
harassment.

11
existence of a disputed material fact.” Id. If the plaintiff cannot meet this burden, “the

affirmative defense bars [her] claim, and the defendant is then entitled to summary

judgment as a matter of law.” Id. In determining whether summary judgment is proper,

we view the evidence in the light most favorable to the non-moving party. Duvall, 607

F.3d at 1259.

III. DISCUSSION

Title VII makes it unlawful for an employer “to discriminate against any

individual with respect to [her] compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). It is well

established that a supervisor’s sexual harassment of a subordinate may constitute

prohibited sex discrimination under Title VII. See generally Meritor Sav. Bank, FSB v.

Vinson, 477 U.S. 57, 64–67 (1986). Furthermore, actionable sexual harassment includes

not only “economic or tangible discrimination” but also “discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.” Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993) (citation and internal quotation marks omitted). In this

case, the State concedes for purposes of summary judgment that Judge Stewart’s alleged

harassment of Helm was actionable. Therefore, the dispositive question in this appeal is

whether the State may be held liable for that harassment.

The Supreme Court has recognized four different theories under which an

employer can be held vicariously liable for the harassing conduct of a supervisor. See
12
Ellerth, 524 U.S. at 756–60; see also Harrison v. Eddy Potash, Inc., 158 F.3d 1371, 1375

(10th Cir. 1998) (listing the four theories of vicarious liability identified in Ellerth).7

Helm relies on two of those theories in this case: (1) the alter-ego theory and (2) the

misuse-of-delegated-authority theory. Accordingly, we pause here briefly to outline

those theories, beginning with the alter-ego theory. We then proceed to address Helm’s

arguments.

The Supreme Court has “acknowledged an employer can be held vicariously liable

under Title VII if the harassing employee’s ‘high rank in the company makes him or her

the employer’s alter ego.’” Harrison, 158 F.3d at 1376 (quoting Ellerth, 524 U.S. at 758);

see also Faragher, 524 U.S. at 789 (recognizing that an employer can be held liable for

sexual harassment by an individual “who [is] indisputably within that class of an

employer organization’s officials who may be treated as the organization’s proxy”). But

the Court has yet to examine the alter-ego theory in any detail, and the theory has

received little attention in our case law. See Mallison-Montague v. Pocrnick, 224 F.3d

1224, 1232 (10th Cir. 2000) (noting “the absolute scarcity of case law development of

this alternate avenue of employer liability”). Accordingly, the scope of the alter-ego

theory remains relatively uncertain.

7
The Court has also indicated that an employer can be held directly liable for a
supervisor’s sexual harassment under certain circumstances. Ellerth, 524 U.S. at 758–59;
see also Harrison, 158 F.3d at 1374–75. Helm does not contend that any of those
circumstances exist in this case, so we need not delve into the different theories of direct
liability.

13
 The misuse-of-delegated-authority theory has been treated in much greater depth

and is the theory under which most cases of supervisor sexual harassment are analyzed.

The Supreme Court expounded this theory in the landmark cases of Burlington

Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton. In those cases, the Court

determined that an employer should be held vicariously liable for a supervisor’s

harassment if the harassment was made possible by abuse of supervisory power.

Faragher, 524 U.S. at 802–04; Ellerth, 524 U.S. at 759–60. The Court recognized,

however, that virtually all sexual harassment by a supervisor involves misuse of

supervisory authority, at least to some degree. Faragher, 524 U.S. at 802–04; see Ellerth,

524 U.S. at 763. Consequently, if interpreted too broadly, the misuse-of-delegated-

authority theory could lead to automatic employer liability, a notion that the Court found

problematic in light of its precedent and other considerations counseling in favor of

limited liability for employers. See Faragher, 524 U.S. at 804, 806–07; Ellerth, 524 U.S.

at 763–64. Thus, the Court adopted a liability scheme designed “to accommodate the

principle of vicarious liability for harm caused by misuse of supervisory authority, as

well as Title VII’s equally basic policies of encouraging forethought by employers and

saving action by objecting employees.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at

764.

Under the Faragher/Ellerth framework, an employer is subject to vicarious liability

for actionable sexual harassment perpetrated by a supervisor with immediate (or

successively higher) authority over the victimized employee in two situations. First,
14
“when the supervisor’s harassment culminates in a tangible employment action, such as

discharge, demotion, or undesirable reassignment,” the employer is strictly liable and

“[n]o affirmative defense is available.” Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at

765. Second, in the absence of a tangible employment action, the employer is liable

unless it can prove an affirmative defense by a preponderance of the evidence. Faragher,

524 U.S. at 807; Ellerth, 524 U.S. at 765. “The defense comprises two necessary

elements: (a) that the employer exercised reasonable care to prevent and correct promptly

any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed

to take advantage of any preventive or corrective opportunities provided by the employer

or to avoid harm otherwise.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.

In this case, the district court granted summary judgment in favor of the State on

Helm’s sexual harassment claim based on the Faragher/Ellerth affirmative defense. Helm

contends that this was error for three reasons: (1) Judge Stewart was the State’s alter ego;

(2) a reasonable jury could conclude that Judge Stewart’s harassment “culminated” in

Helm’s termination, which would prevent the State from asserting the Faragher/Ellerth

defense; and (3) genuine factual disputes exist with respect to both prongs of the defense.

We consider these arguments in turn.

A. Helm’s Alter-Ego Theory

Helm first argues that the Faragher/Ellerth defense is not available to the State

because the harasser, Judge Stewart, was the State’s alter ego. We have not squarely
15
addressed whether an employer may rely on the Faragher/Ellerth defense when a

victimized employee seeks to impose liability on the employer under the alter-ego theory

as opposed to the misuse of delegated authority. We need not decide that issue to

resolve this case, however, as we conclude that Helm’s argument fails for the reason that

Judge Stewart did not operate as the alter ego of the State.

The contours of the alter-ego theory are not well defined. Nevertheless, the

Supreme Court’s decision in Faragher and our decisions in Harrison and Mallinson-

Montague provide some guidance. In Faragher, the Supreme Court suggested that

presidents, owners, proprietors, partners, corporate officers, and supervisors with a high

position in the management hierarchy are the types of officials who can be considered an

organization’s alter ego. See 524 U.S. at 789–90. In Harrison, we stated that “a

supervisory employee can[not] be considered an employer’s ‘alter ego’ simply because

he or she possesses a high degree of control over a subordinate.” 158 F.3d at 1376.

Thus, a “low-level supervisor” does not qualify. Id. at 1376 n.2. Finally, in Mallinson-

Montague, we concluded that a bank’s senior vice president of consumer lending held a

sufficiently “high managerial rank” to qualify as the bank’s alter ego. 224 F.3d at 1233.

We relied on the following factors: the vice president (1) “had the authority to hire and

fire employees in the consumer lending department”; (2) “was the ultimate supervisor of

all employees in the department”; (3) “had the ultimate authority to disapprove all

consumer loans”; (4) answered only to the bank’s president; (5) held a “senior level title”

that was regarded as “very important”; and (6) served on “committees exercising policy-
16
making functions.” Id.

These cases indicate that an official must be high enough in the management

hierarchy that his actions “speak” for the employer before he may be considered the

employer’s alter ego. Accord Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 384 (5th Cir.

2003) (“[T]he only factor relevant to the determination of whether [the former president

and general manager] was a proxy for [the corporation] is whether he held a ‘sufficiently

high position in the management hierarchy’ so as to speak for the corporate employer.”

(quoting Faragher, 524 U.S. at 789); Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000)

(holding that the chief of police at a Veterans Affairs (VA) hospital was not the VA’s

alter ego because “he was not a high-level manager whose actions ‘spoke’ for the VA”

(citing Harrison, 158 F.3d at 1376)). Only individuals with exceptional authority and

control within an organization can meet that standard. Judge Stewart was not such an

individual.

As an initial matter, we are aware of no cases in which a state district judge (or,

for that matter, any state official) was deemed to be the alter ego of the state. Indeed,

virtually every case addressing the alter-ego issue has arisen in the corporate context. Of

course, this does not necessarily mean that a public official can never qualify as the alter

ego of a government entity. But few public officials are vested with the same degree of

power over a government entity as, for example, a corporate president has over a

corporation. In this case, we need not meticulously define the narrow class of public

officials who hold that kind of power, as it is clear that state district judges do not qualify.
17
State district judges do not exercise a sufficient degree of control over the myriad

operations of the state. Rather, they operate in a limited sphere (the judicial branch) and

perform a limited role (interpreting and applying the law that is enacted by other state

officials). Furthermore, their decisions are subject to review and reversal by “higher

ranking” state judges. For these reasons, state district judges, although they have

considerable authority, do not occupy positions in the top echelons of the state’s

management. Nor does any state district judge speak for and represent the state. Indeed,

the essential task of all judges is to be independent of the state, even to the extent of

occasionally being asked to review the constitutionality or other legality of state actions.

Therefore, the district court correctly determined that Judge Stewart was not the alter ego

of the State of Kansas.

B. Whether Judge Stewart’s Harassment “Culminated” in Helm’s Termination

We next address Helm’s contention that the State may not assert the

Faragher/Ellerth defense because she produced evidence that would allow a reasonable

jury to conclude that Judge Stewart’s harassment “culminated” in a tangible employment

action—namely, her termination. Helm claims that the following evidence demonstrates

that the decision to terminate her resulted from Judge Stewart’s sexual harassment: (1)

Chief Judge King’s failure to report Helm’s first mention of Judge Stewart’s sexual

harassment; (2) Judge Bednar’s comment to Judge Stewart that Helm was complaining so

that she could get money; (3) the fact that Helm was fired before she returned from

medical leave; and (4) the fact that Ron Chance entered into a diversion agreement for a
18
DUI and was allowed to keep his job. Because Helm’s evidence does not support an

inference of a causal connection between Judge Stewart’s harassment and Chief Judge

King’s subsequent termination decision, we reject Helm’s argument.

There is no question that Helm’s discharge constitutes a tangible employment

action. Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1059 (10th Cir. 2009) (citing

Ellerth, 524 U.S. at 761). But a plaintiff cannot show that a supervisor’s harassment

“culminated” in a tangible employment action merely by demonstrating that the tangible

employment action followed the harassment. See id. Rather, the plaintiff must establish

a strong causal nexus between the supervisor’s harassment and the tangible employment

action. See id. at 1059–61 (discussing two ways in which a plaintiff might show the

requisite causal relationship); Johnson, 218 F.3d at 731.

Here, Helm has offered no evidence that connects Judge Stewart’s harassment to

Chief Judge King’s termination decision. Indeed, it is undisputed that Judge Stewart

removed himself from all employment decisions concerning Helm and played no role in

the decision to fire her. Accordingly, Helm’s “termination did not result from [Judge

Stewart’s] harassment in the way Ellerth and Faragher contemplate.”8 Johnson, 218 F.3d

at 731. The district court was thus correct in its conclusion that the State could rely on

the Faragher/Ellerth defense.

8
Helm has abandoned her retaliation claim in this appeal, so we do not address
whether any of her evidence might have supported a separate and distinct claim that
Chief Judge King retaliated against her because she complained about sexual harassment.

19
C. Application of the Faragher/Ellerth Defense

Having concluded that legally the Faragher/Ellerth defense is available to the

State, we now turn to Helm’s final argument, which is that even if the Faragher/Ellerth

defense is legally available to the State, genuine issues of material fact preclude summary

judgment. As set forth above, to take advantage of the defense, the employer must

factually demonstrate “(a) that [it] exercised reasonable care to prevent and correct

promptly any sexually harassing behavior, and (b) that the plaintiff employee

unreasonably failed to take advantage of any preventive or corrective opportunities

provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807;

Ellerth, 524 U.S. at 765. We address these two factual elements of the defense in turn.

1. Whether the State Exercised Reasonable Care to Prevent and Correct
Promptly Any Sexually Harassing Behavior

The first element of the Faragher/Ellerth defense actually imposes two distinct

requirements on an employer: (1) the employer must have exercised reasonable care to

prevent sexual harassment and (2) the employer must have exercised reasonable care to

correct promptly any sexual harassment that occurred. See Pinkerton, 563 F.3d at 1062.

Helm contends that the State (acting through the First Judicial District) was unreasonable

in both its prevention and correction efforts. We disagree.

Beginning with the prevention requirement, courts have recognized that the

existence of a valid sexual harassment policy is an important consideration in

determining whether an employer acted reasonably to prevent sexual harassment. See

20
id.; see also, e.g., Weger v. City of Ladue, 500 F.3d 710, 719–20 (8th Cir. 2007); Madray

v. Publix Supermarkets, Inc., 208 F.3d 1290, 1297–99 (11th Cir. 2000); Shaw v.

AutoZone, Inc., 180 F.3d 806, 811–12 (7th Cir. 1999). Here, the record reveals that the

State implemented a sexual harassment policy that prohibits sexual harassment, contains

a complaint procedure and list of personnel to whom harassment may be reported, and

includes an anti-retaliation provision. Helm does not challenge the facial effectiveness of

this policy.

But mere promulgation of a sexual harassment policy that is reasonable on its face

does not constitute an adequate preventative measure; the employer must also

disseminate the policy. See Agusty-Reyes v. Dep’t of Educ., 601 F.3d 45, 55 (1st Cir.

2010); Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314–15 (11th Cir. 2001);

see also Faragher, 524 U.S. at 808 (holding that the employer failed to exercise

reasonable care to prevent harassment where, among other things, it “entirely failed to

disseminate its policy against sexual harassment among [its] employees”). In this case,

the State distributed its policy to employees via the Handbook and required employees to

sign a form affirming that they had read and understood the policies in the Handbook.

The State also provided training regarding the sexual harassment policy to management-

level employees. According to Helm, these efforts to disseminate the policy were

insufficient and rendered the State’s preventative measures unreasonable. Specifically,

Helm complains that the State buried its sexual harassment policy in the middle of a fifty-

page employee handbook and did not provide training on the policy to non-management
21
employees. She also alleges that numerous employees, including herself, were

completely unaware of the policy.

In our view, the State’s efforts to prevent sexual harassment, while perhaps not as

comprehensive as Helm would have liked, were nonetheless reasonable. Numerous

courts have held that employers acted reasonably as a matter of law when they adopted

valid sexual harassment policies, distributed those policies to employees via employee

handbooks, and either provided no sexual harassment training or provided training only

to managers. See, e.g., Dearth v. Collins, 441 F.3d 931, 935 & 936 n.5 (11th Cir. 2006)

(per curiam); Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 265, 268 (4th Cir.

2001); Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1180 (9th Cir. 2001); Shaw, 180 F.3d

at 811–12; cf. Thornton v. Fed. Express Corp., 530 F.3d 451, 456–57 (6th Cir. 2008)

(stating that an effective sexual harassment policy should, among other things, provide

for training regarding the policy, but then observing that there was no dispute regarding

the reasonableness of the employer’s prevention efforts where the employer distributed

its policy via an employee handbook and the plaintiff received more than one copy of the

handbook during her employment). The Seventh Circuit’s decision in Shaw v.

AutoZone, Inc. is particularly instructive given the similarities between that case and this

one. There, the employer adopted a facially valid sexual harassment policy that it

distributed to all of its employees via an employee handbook. 180 F.3d at 811.

Additionally, the employer provided training to management-level employees regarding

the policy. Id. at 812. The Seventh Circuit concluded that these facts established, as a
22
matter of law, that the employer exercised reasonable care to prevent sexual harassment.

Id. Notably, the court found “irrelevant” the plaintiff’s testimony that she was unaware

of the employer’s sexual harassment policy. Id. at 811. Like Helm, the plaintiff in Shaw

signed an acknowledgement form stating that she understood that it was her

responsibility to read and understand the policies contained in the employee handbook.

Id. Accordingly, the court reasoned that “even if [the plaintiff] did not have actual

knowledge of the policy, she had constructive knowledge of the anti-harassment policy.”

Id.

We agree with Shaw and the other cases cited above. Therefore, we conclude that

the State exercised reasonable care to prevent sexual harassment by promulgating an

appropriate sexual harassment policy, distributing that policy to all employees via an

employee handbook, requiring employees to acknowledge in writing their understanding

of the policies contained in the handbook, and providing training to managers regarding

the sexual harassment policy.9 Although the State could have made a stronger effort to

9
Helm’s arguments regarding alleged widespread ignorance of the sexual
harassment policy do not convince us otherwise. For starters, Helm is deemed to have
had knowledge of the policy by virtue of her signing the acknowledgment form after she
received and reviewed her Handbook. See Shaw, 180 F.3d at 811. Furthermore, we give
no weight to Helm’s conclusory allegations regarding the knowledge of several of her
coworkers. In her opening brief, Helm claims that she “told several employees about
Judge Stewart’s sexual harassment, including Karen Connor, Estella Sullivan, [and]
Larry Thibault, yet none of them suggested she make a formal complaint, presumably
because none of them had training about the availability and requirement of the
complaint procedure.” (Aplt. Br. at 36.) This sort of naked speculation is insufficient to
create a triable issue of fact. See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th
Continued . . .
23
disseminate its sexual harassment policy by providing training to non-management

employees and/or by publishing the policy more prominently, the relevant question “is

not whether any additional steps or measures would have been reasonable if employed,

but whether the employer’s actions as a whole establish a reasonable mechanism for

prevention.” Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1177 (9th Cir. 2003).

Turning to the correction requirement, it is clear that an employer’s mere

promulgation and dissemination of an adequate sexual harassment policy does not, by

itself, establish that the employer acted reasonably to remedy any harassment that

occurred despite the reasonable preventative measures. See Pinkerton, 563 F.3d at 1062;

see also Cerros v. Steel Techs., Inc., 398 F.3d 944, 953 (7th Cir. 2005); Spriggs v.

Diamond Auto Glass, 242 F.3d 179, 188 (4th Cir. 2001) (“[A] jury could rationally

conclude that, although [the employer’s] institution of an anti-harassment policy

represented a reasonable step toward preventing the type of abuse suffered by [the

______________________________________
Cont.

Cir. 2004) (“Unsubstantiated allegations carry no probative weight in summary judgment
proceedings.”). Finally, Helm’s claim that Larry Thibault, a thirty-year employee of the
First Judicial District and Judge Stewart’s former court reporter, was utterly ignorant of
the sexual harassment policy until his deposition in this case is contradicted by the
record. Thibault specifically testified that he knew that unwanted touching would violate
the sexual harassment policy. Although Thibault also testified that he was unaware of an
affirmative obligation to report known instances of sexual harassment, evidence that one
employee was not familiar with every detail of a sexual harassment policy does not,
without more, create a genuine issue of fact regarding the reasonableness of an
employer’s prevention efforts.

24
employee], the company unreasonably failed to correct [the supervisor’s] offending

behavior by neglecting to enforce the policy.”). Rather, in order “to establish that it took

proper action to correct harassment, [the State] was required to show that it acted

reasonably promptly on [Helm’s] complaint when it was given proper notice of her

allegations as required under its complaint procedures.” Frederick, 246 F.3d at 1314.

“The most significant immediate measure an employer can take in response to a sexual

harassment complaint is to launch a prompt investigation to determine whether the

complaint is justified.” Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001); see also

Cerros, 398 F.3d at 954 (“Our cases recognize prompt investigation of the alleged

misconduct as a hallmark of reasonable corrective action.”).

Helm argues that the State failed to act reasonably to correct Judge Stewart’s

sexual harassment because Chief Judge King did not initiate an investigation into Helm’s

first complaint about Judge Stewart. According to Helm, Chief Judge King neglected to

follow the sexual harassment policy, which expressly provides that all sexual harassment

complaints will be taken seriously and promptly investigated. We find Helm’s argument

unpersuasive.

The record indicates that Helm first approached Chief Judge King in late June or

early July 2007 and told him that Judge Stewart had done something inappropriate and

made her feel uncomfortable. But Helm provided absolutely no details about Judge

Stewart’s conduct, nor does the record suggest that Helm even mentioned sexual

harassment. As we recognized above, “the question of whether [the State] timely acted to
25
correct harassment turns on when it had proper notice of [Helm’s] harassment

complaint.” Frederick, 246 F.3d at 1315 (emphasis added); see also Swenson, 271 F.3d

at 1192 (“Notice of the sexually harassing conduct triggers an employer’s duty to take

prompt corrective action that is reasonably calculated to end the harassment.” (emphasis

added) (internal quotation marks omitted)). In our view, Helm’s vague complaint did not

constitute adequate notice that would have triggered Chief Judge King’s duty to take

corrective action. See Madray, 208 F.3d at 1300 (holding that an employee’s complaint

to a manager that a supervisor’s behavior made her sick was too “informal” and “general”

to put the manager on notice of the need to take corrective action).

Furthermore, even if Chief Judge King had some obligation to take action, which

he did not, no reasonable jury could conclude that Chief Judge King acted unreasonably

in response to Helm’s amorphous complaint. Chief Judge King advised Helm of the

procedure for making a formal complaint and assured Helm that she had the full support

of the First Judicial District. He also informed Helm that he was required to report all

incidents of sexual harassment. Nevertheless, when Helm returned to Chief Judge King

later that same day and told him that she did not wish to pursue her complaint because

she had spoken with Judge Stewart and resolved the matter, Chief Judge King respected

her wishes. Although this decision may have been inconsistent with the letter of the

State’s harassment policy, which indicates that all sexual harassment complaints will be

investigated, it was entirely reasonable under the circumstances. Cf. Brown v. Perry, 184

F.3d 388, 396 (4th Cir. 1999) (holding that supervisors who violated the employer’s
26
directive that all sexual harassment be reported nonetheless acted reasonably because

they (1) “were confronted with a victim who has continuing to work effectively and . . .

who reported a single incident of harassment perpetrated by a supervisory employee with

whom she would have very limited future contact”; (2) “offer[ed] immediate

unconditional support to the victim,” (3) suggested that the victim speak with an Equal

Employment Opportunity officer; and (4) declined to report the victim’s sexual

harassment complaint only after she requested that they not pursue the matter).

Importantly, when Helm made specific allegations of sexual harassment to Judge

Bednar in August 2007, Judge Bednar immediately contacted Chief Judge King and

Steven Crossland, who reported the complaint to the OJA the same day. The OJA

coordinated with the KCJQ and quickly began an investigation that resulted in

disciplinary proceedings against Judge Stewart. Additionally, Crossland made plans to

reassign Helm’s duties so that she would not have to work for Judge Stewart when she

returned from medical leave. Crossland also told Helm that her complaint would be

investigated, that her job was safe, and that they would discuss changing her duties when

she returned. These actions clearly constitute reasonable efforts to correct promptly

Judge Stewart’s harassing behavior.

Because the undisputed facts demonstrate that the State acted reasonably to

prevent and correct promptly Judge Stewart’s sexually harassing behavior, the district

court correctly determined that the State satisfied its summary-judgment burden with

respect to the first prong of the Faragher/Ellerth defense. We now turn to the second
27
prong of the defense.

2. Whether Helm Unreasonably Failed to Take Advantage of
Preventive or Corrective Opportunities or to Avoid Harm
Otherwise

An employer may satisfy the second element of the Faragher/Ellerth defense by

showing that the victimized employee unreasonably delayed in reporting incidents of

sexual harassment. See Pinkerton, 563 F.3d at 1063 (holding that an unexplained delay

of two or two and a half months was unreasonable). Here, the district court determined

that Helm acted unreasonably by waiting until the middle of 2007 to report Judge

Stewart’s sexual harassment, which had been ongoing for several years. On appeal,

Helm’s offers only one excuse for the delay: her alleged lack of knowledge of the State’s

sexual harassment policy. But as we explained above, because Helm signed a form

acknowledging that she had read and understood the policies contained in the Handbook,

she had at least constructive knowledge of the sexual harassment policy. See Shaw, 180

F.3d at 811. Therefore, her ignorance argument is unavailing, and we have no basis on

which to disturb the district court’s conclusion that the State carried its burden on the

second prong of the Faragher/Ellerth defense.

Because the State has shown that no genuine issues of material fact exist regarding

the reasonableness of its preventive and corrective measures and the unreasonableness of

Helm’s mitigation efforts, the district court properly granted summary judgment in favor

of the State on Helm’s sexual harassment claim.

D. Motions to Seal Portions of the Appendices
28
 Finally, we turn to the parties’ motions to seal portions of their respective

appendices. Helm seeks to seal five volumes of her six-volume appendix, while the State

seeks to seal one volume of its two-volume appendix. The Clerk of this Court

provisionally granted the parties’ motions, leaving the ultimate decision to this panel.

We now deny both motions to seal.

Although “[c]ourts have long recognized a common-law right of access to judicial

records,”10 this right “is not absolute.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th

Cir. 2007). Accordingly, this Court, “in its discretion, may seal documents if the public’s

right of access is outweighed by competing interests.” United States v. Hickey, 767 F.2d

705, 708 (10th Cir. 1985) (internal quotation marks omitted). “In exercising this

discretion, we weigh the interests of the public, which are presumptively paramount,

against those advanced by the parties.” Crystal Grower’s Corp. v. Dobbins, 616 F.2d

458, 461 (10th Cir. 1980). “The party seeking to overcome the presumption” of public

access to the documents “bears the burden of showing some significant interest that

outweighs the presumption.” Mann, 477 F.3d at 1149 (internal quotation marks omitted).

In support of their motions to seal, the parties allege only that the portions of the

volumes of the appendices that they wish to seal contain confidential discovery materials

10
Although this common-law right has long been recognized, “[t]he Supreme
Court has not yet ruled on ‘whether there is [also] a constitutional right of access to court
documents and, if so, the scope of such a right.’” United States v. Gonzales, 150 F.3d
1246, 1256 (10th Cir. 1998) (quoting United States v. McVeigh, 119 F.3d 806, 812 (10th
Cir. 1997) (per curiam)).

29
that are subject to a stipulated protective order entered by the district court on January 14,

2009. Even assuming, however, that the district court’s protective order is valid and has

continuing effect in that court, the order cannot limit our authority to decide whether the

parties may file documents under seal in this Court. See Dobbins, 616 F.2d at 461 (“It is

beyond question that this Court has discretionary power to control and seal, if necessary,

records and files in its possession.”). Moreover, the parties cannot overcome the

presumption against sealing judicial records simply by pointing out that the records are

subject to a protective order in the district court. Rather, the parties must articulate a real

and substantial interest that justifies depriving the public of access to the records that

inform our decision-making process. Because the parties have not come close to meeting

that heavy burden, we deny the motions to seal.

IV. CONCLUSION

For the foregoing reasons, we hold that the Faragher/Ellerth defense shields the

State of Kansas from liability for Judge Stewart’s alleged sexual harassment of Helm.

Accordingly, we AFFIRM the district court’s grant of summary judgment in favor of the

State. We also DENY both parties’ motions to seal certain volumes of their respective

appendices.

30